not less than six weeks, in such newspapers as shall be most likely to give notice to him, and the deposit of a copy of the summons and complaint in the post office, directed to him at his residence, if it can be ascertained, and providing for the allowance to defend the action before judgment, and within seven years after its rendition, upon good cause shown, and that, if the defense be successful, restitution shall be or dered. It is enacted: "But the title to property sold under such judgment to a purchaser in good faith shall not be thereby affected." Code, secs. 34, 35; 5 Edm. R. S. of N. Y.. pp. 37-39. Provisions similar in their effect, in authorizing the commencement of suits by attachment against absent debtors, in which all of the property of the absent debtor, real and personal, not merely that seized upon the attachment, is placed under the control of trustees who sell it for the benefit of all the creditors, and make just distribution thereof, conveying absolute title to the property sold, have been upon the statute-book of New York for more than sixty years. 2 Id., p. 2, and following; 1 R. L., 1813, p. 157. The Statute of New York, before the Code, respecting proceedings in chancery where absent debtors are parties, had long been in use in that State, and were adopted in all cases of chancery jurisdiction. Whenever a defendant resided out of the State, his appearance might be compelled by publication in the manner pointed out. A decree might pass against him, and performance be compelled by sequestration of his real or personal property, or by causing possession of specific property to be delivered, where that relief is sought. The relief was not confined to cases of mortgage foreclosure, or where there was a specific claim upon the property, but included cases requiring the payment of money as well. 2 Edm. R.S. N. Y., pp. 193-195; 186, m. I doubt not that many valuable titles are now held by virtue of the provisions of these statutes. The Statute of California authorizes the service of a summons on a non-resident defendant by publication, permitting him to come in and defend upon the merits within one year after the entry of judgment. Code, secs., 10412, 10473. In its general character it is like the Statutes of Oregon and New York, already referred to. The Code of Iowa, sec. 2618, that of Nevada, sec. 1093, and that of Wisconsin, are to the same general effect. The Revised Statutes of Ohio, secs. 70, 75, 2 Swan & Critchfield, provide for a similar publication, and that the defendant may come in to defend within five years after the entry of the judgment, but that the title to property held by any purchaser in good faith under the judgment shall not be affected thereby. The attachment laws of New Jersey, Nixon Dig., 4th ed., p. 55, are like those of New York already quoted, by which title may be transferred to all the property of a non-resident debtor. And the provisions of the Pennsylvania Statute regulating proceedings in equity, Brightly's Purdon's Dig., p. 5988, secs. 51, 52, give the same authority in substance, and the same result is produced as under the New York Statute. Without going into a wearisome detail of the statutes of the various States, it is safe to say that nearly every State in the Union provides a process by which the lands and other property of a non-resident debtor may be subjected to the payment of his debts, through a judgment or decree against the owner, obtained upon a substituted service of the summons or writ commencing the action. The principle of substituted service is also a rule of property under the statutes of the United States. The Act of Congress "To Amend the Law of the District of Columbia in relation to Judicial Proceedings Therein," passed February 23,1867, 14 Stat. at L., 403, contains the same general provisions. It enacts, section 7, that publication may be substituted for personal service, when the defendant cannot be found, in suits for partition, divorce, by attachment, for the foreclosure of liens, and in all actions at law or in equity, having for their object the establishment of a right or claim against any real or personal property within the jurisdiction of the court. A following section points out the mode of proceeding, and closes in these words: "The decree, besides subjecting the thing upon which the lien has attached to the satisfaction of the plaintiff's demand against the defendant, shall adjudge that the plaintiff recover his demand against the defendant, and that he may have execution thereof as at law." Sec. 10. A formal judgment against the debtor is thus authorized, by means of which any other property of the defendant within the jurisdiction of the court, in addition to that which is the subject of the lien, may be sold, and the title transferred to the purchaser. All these statutes are now adjudged to be unconstitutional and void. The titles obtained under them are not of the value of the paper on which they are recorded, except where a preliminary attachment was issued. Some of the statutes and several of the authorities I cite go further than the present case requires. In this case, property lying in the State where the suit was brought, owned by the non-resident debtor, was sold upon the judgment against him; and it is to the title to that property that the question arises. The question whether, in a suit commenced like the present one, a judgment can be obtained, which, if sued upon in another State, will be conclusive against the debtor, is not before us; nor does the question arise as to the faith and credit to be given in one State to a judgment recovered in another State. The learning on that subject is not applicable. The question is simply whether land lying in the same State may be subjected to process at the end of a suit thus commenced. It is here necessary only to maintain the principle laid down by Judge Cooley in his work on Constitutional Law, p. 404, and cited by Mr. Justice Field in Galpin v. Page, 3 Sawyer, 93, in these words: "The fact that process was not personally served is a conclusive objection to the judgment as a personal claim, unless the defendant caused his appearance to be entered in the attachment proceedings. Where a party has property in a State, and resides elsewhere, his property is justly subject to all valid claims that may exist against him there; but beyond this, due process of law would require appearance or personal service before the defendant could be personally bound by any judgment rendered." The learned author does not make it a condi- | courts of justice.' 2 Kent, Com., 13. It need tion that there should be a preliminary seizure of not be a legal proceeding according to the course the property by attachment; he lays down the of the common law, neither must there be perrule that all a person's property in a State may sonal notice to the party whose property is in be subjected to all valid claims there existing question. It is sufficient if a kind of notice is against him. provided by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity afforded him to defend." The objection now made: that suits commenced by substituted service, as by publication, and judgments obtained without actual notice to the debtor, are in violation of that constitutional provision that no man shall be deprived of his property "without due process of law," has often been presented. In Matter of Empire City Bk., 18 N. Y., 199. which was a statutory proceeding to establish and to enforce the responsibility of the stockholders of a banking corporation, and the proceedings in which resulted in a personal judgment against the stockholders for the amount found due, the eminent and learned Judge Denio, speaking as the organ of the Court of Appeals, says: The same language is used in Westervelt v. Gregg, 12 N. Y.,202, and in Campbell v. Evans, 45 N. Y., 356. Campbell v. Evans and Emp. C. Bk., are cases not of proceedings against property to enforce a lien or claim; but in each of them a personal judgment in damages was rendered against the party complaining. It is undoubtedly true that, in many cases where the question respecting due process of law has arisen, the case in hand was that of a proceeding in rem. It is true, also, as is asserted, that the process of a State cannot be supposed to run beyond its own territory. It is "The notice of hearing is to be personal, or equally true, however, that, in every instance by service at the residence of the parties who where the question has been presented, the valive in the county, or by advertisement as to lidity of substituted service, which is used to others. It may, therefore, happen that some subject property within the State belonging to of the persons who are made liable will not have a non-resident to a judgment obtained by means received actual notice, and the question is, thereof, has been sustained. I have found no whether personal service of process or actual case in which it is adjudged that a statute must notice to the party is essential to constitute due require a preliminary seizure of non-resident process of law. We have not been referred to property as necessary to the validity of the proany adjudication holding that no man's right of ceeding against it; or that there must have been property can be affected by judicial proceed a previous specific lien upon the property finalings unless he have personal notice. It may be ly sold; that is, I have found no case where admitted that a statute which should authorize such has been the judgment of the court upany debt or damages to be adjudged against a on facts making necessary the decision of the person upon a purely ex parte proceeding, with- point. On the contrary, in the case of the atout a pretense of notice or any provision for de-tachment laws of New York and of the State of fending, would be a violation of the Constitution, and be void; but where the Legislature has prescribed a kind of notice by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded him to de-nary facts existed. fend, I am of the opinion that the courts have not the power to pronounce the proceeding illegal. The Legislature has uniformly acted upon that understanding of the Constitution.' Numerous provisions of the statutes of the State are commented upon, after which he proceeds: "Various prudential regulations are made with respect to these remedies; but it may possibly happen, notwithstanding all these precautions, that a citizen who owes nothing, and has done none of the acts mentioned in the statute, may be deprived of his estate, without any actual knowledge of the process by which it has been taken from him. If we hold, as we must in order to sustain this legislation, that the Constitution does not positively require personal notice in order to constitute a legal proceeding due process of law, it then belongs to the Legislature to determine whether the case calls for this kind of exceptional legislation, and what manner of constructive notice shall be sufficient to reasonably apprise the party proceeded against of the legal steps which are taken against him." In Happy v. Mosher, 48 N. Y., 313, the court say: "An approved definition of due process of law is 'law in its regular administration through New Jersey, which distribute all of the nonresident's property, not merely that levied on by the attachment, and in several of the reported cases already referred to, where the judgment was sustained, neither of these prelimi The case of Galpin v. Page, reported in 18 Wall., 350 [85 U. Š., XXI., 959], and again in 3 Sawyer, 93, is cited in hostility to the views I have expressed. There may be general expressions which will justify this suggestion, but the judgment is in harmony with those principles. In the case as reported in this court, it was held that the title of the purchaser under a decree against a non-resident infant was invalid, for two reasons: 1. That there was no jurisdiction of the proceeding under the Statute of California, on account of the entire absence of an affidavit of non-residence, and of diligent inquiry for the residence of the debtor; and, the absence of any order for publication in Eaton's case, both of which are conditions precedent to the jurisdiction of the court to take any action on the subject. The title was held void, also, for the reason that the decree under which it was obtained had been reversed in the State court, and the title was not taken at the sale, nor held then by a purchaser in good faith, the purchase being made by one of the attorneys in the suit, and the title being transferred to his law partner after the reversal of the decree. The court held that there was a failure of jurisdiction in the court under which the plaintiff claimed title, and that he could not recover. The learned Justice who delivered the opinion in the Circuit Court and in this court expressly affirms the authority of a State over persons not only, but property as well, within its limits, and this by means of a substituted service. The judgment so obtained, he insists, can properly be used as a means of reaching property within the State, which is thus brought under the control of the court and subjected to its judgment. This is the precise point in controversy in the present action. The case of Cooper v. Reynolds, 10 Wall.,308 [77 U. S., XIX., 931], is cited for the same purpose. There the judgment of the court below, refusing to give effect to a judgment obtained upon an order of publication against a non-resident, was reversed in this court. The suit was commenced, or immediately accompanied (it is not clear which*), by an attachment which was levied upon the real estate sold, and for the recovery of which this action was brought. This court sustained the title founded upon the suit commenced against the non-resident by attachment. In the opinion delivered in that case there may be remarks, by way of argument or illustration, tending to show that a judgment obtained in a suit not commenced by the levy of an attachment will not give title to land purchased under it. They are, however, extrajudicial, the decision itself sustaining the judgment obtained under the State Statute by publication. Webster v. Reid, 11 How., 437, is also cited. There the action involved the title to certain lands in the State of Iowa, being lands formerly belonging to the half-breeds of the Sac and Fox tribes; and title was claimed against the Indian right under the statutes, of June 2d, 1838, and January 1839. By these statutes, commissioners were appointed who were authorized to hear claims for accounts against the Indians, and commence actions for the same, giving a notice thereof of eight weeks in the Iowa Territorial Gazette, and to enter up judgments which should be a lien on the lands. It was provided that it should not be necessary to name the defendants in the suits, but the words owners of the half-breed lands lying in Lee County" should be a sufficient designation of the defendants in such suits; and it provided that the trials should be by the court, and not by a jury. It will be observed that the lands were not only within the limits of the Territory of Iowa, but that all the Indians who were made defendants under the name mentioned were also residents of Iowa and, for aught that appears to the contrary, of the very County of Lee in which the proceeding was taken. Non-residence was not a fact in the case. Moreover, they were Indians and, presumptively, not citizens of any State; and the judgments under which the lands were sold were rendered by the commissioners for their own services under the Act. The court found abundant reasons, six in number, for refusing to sustain the title thus obtained. The Act was apparently an attempt dishonestly to obtain the Indian title, and not intended to give a substitution for a personal service which would be likely, or was reasonably designed, to reach the persons to be affected. The case of Voorhees v. Jackson, 10 Pet., 449, *NOTE. Compare complete report XIX., 931, supra. Ed. affirmed the title levied under the attachment laws of Ohio, and laid down the principle of assuming that all had been rightly done by a court having general jurisdiction of the subject. matter. In Cooper v. Smith, 25 Iowa, 269, it is said, that where no process is served on the defendant, nor property attached, nor garnishee charged, nor appearance entered, a judgment based on a publication of the pendency of the suit will be void, and may be impeached, collaterally or otherwise, and forms no bar to a recovery in opposition to it, nor any foundation for a title claimed under it. The language is very general, and goes much beyond the requirement of the case, which was an appeal from a personal judgment obtained by publication against the defendant, and where, as the court say, the petition was not properly verified. All that the court decided, was that this judgment should be reversed. This is quite a different question from the one before us. Titles obtained by purchase at a sale upon an erroneous judgment are generally good, although the judgment itself be afterwards reversed. McGoon v. Scales, 9 Wall., 23 [76 U. S., XIX., 545]. In the following case of Darrance v. Preston, 18 Iowa, 396, the court points out the distinction between the validity of a judgment as to the amount realized from the sale of property within the jurisdiction of the court and its validity beyond that amount. The cases of Picquet v. Swan, 5 Mas., 35; Bissell v. Briggs, 9 Mass., 462; Ewer v. Coffin, 1 Cush., 23, are cited; but none of them in their facts touches the question before us. In Drake, on Attachments, the rule is laid down in very general language; but none of the cases cited by him will control the present case. They are the following: Eaton v. Badger, 33 N. H., 228, was decided upon the peculiar terms of the New Hampshire Statute, which forbids the entry of a judgment, unless the debtor was served with process, or actually appeared and answered in the suit. The court say the judgment was not only unauthorized by law, but rendered in violation of its express provisions. Johnson v. Dodge, [19 Iowa, 106], was a proceeding in the same action to obtain a reversal on appeal of the general judgment, and did not arise upon a contest for property sold under the judgment. Carleton v. Ins. Co., 35 N. H., 162, and Bruce v. Cloutman, 45 N. H., 37, are to the same effect and upon the same statute. Smith v. McCutchen, 38 Mo., 415, was a motion in the former suit to set aside the execution by a garnishee, and it was held that the statute was intended to extend to that class of cases. Abbott v. Sheppard, 44 Mo., 273, is to the same effect, and is based upon Smith v. McCutchen [supra]. So in Eastman v. Wadleigh, 65 Me., 251, the question arose in debt on the judgment, not upon a holding of land purchased under the judgment. It was decided upon the express language of the Statute of Maine, strongly implying the power of the Legislature to make it otherwise, had they so chosen. It is said that the case where a preliminary seizure is made, and jurisdiction thereby conferred, differs from that where the property MEIGS, JR. SAME, Appt., v. ZACHARY TAYLOR. SAME, Appt., v. HILLARY GRIMES. SAME, Appt., v. WILLIAM A. MULLOY. (See S. C., 5 Otto, 748-750.) Additional pay. is seized at the end of the action, in this: in the | UNITED STATES, Appt., v. RETURN J. first case, the property is supposed to be so near to its owner, that, if seizure is made of it, the owner will be aware of it, and have his opportunity to defend, and jurisdiction of the person is thus obtained. This, however, is matter of discretion and of judgment only. Such seizure is not in itself notice to the defendant, and it is not certain that he will by that means receive notice. It is what is adopted as a means of communicating notice, and no doubt is a very good means, but not the only one, nor necessarily better than by a notice published with an honest intention to reach the debtor. Who shall assume to say to the Legislature, that if it authorizes a particular kind of means to give notice to a debtor, its action may be sustained, but, if it adopts any or all others, its action is unconstitutional and void? The rule is universal, that modes, means, questions of expediency or necessity, are exclusively within the judgment of the Legislature, and that the judiciary cannot review them. This has been so held in relation to an United States bank, to the Legal Tender Act, and to other provisions of the Constitution. In Jarvis v. Barrett, 14 Wis., 591, such is the holding. The court say: * "The essential fact on which the publication is made to depend is property of the defendant in the State, and not whether it has been attached. * * There is no magic about the writ [of attachment] which should make it the exclusive remedy. The same legislative power which devised it can devise some other, and declare that it shall have the same force and effect. The particular means to be used are always within the control of the Legislature, so that the end be not beyond the scope of legislative power. If the Legislature shall think that publication and deposit in the postoffice are likely to give the notice, there seems to be nothing in the nature of things to prevent their adoption in lieu of the attachment. The point of power cannot be thus controlled. That a State can subject land within its limits belonging to non-resident owners to debts due to its own citizens as it can legislate upon all other local matters; that it can prescribe the mode and process by which it is to be reached, seems to me very plain. That a sovereign State cannot subject the land within its limits to the payment of debts due to its citizens, or that the power to do so depends upon the fact whether its statute shall authorize the property to be levied upon at the commencement of the suit or at its termination, I am not willing to declare. This I consider a matter of detail, and that if reasonable notice is given, with an opportunity to defend when appearance is made, the question of power is fully satisfied. Cited-98 U.S., 478; 99 U. S., 370; 101 U.S., 413,422; 103 U. S., 198, 441; 106 U. S., 353; 107 U. S., 545; 110 U. S., 156; 4 Cliff., 617; 3 Hughes, 387; 4 Hughes, 120; 5 Hughes, 376; 5 Sawy., 480; 6 Sawy., 279, 417; 7 Sawy., 401; 53 Cal., 640; 75 N. Y., 534; 88 N. Y.. 224; 33 Hun; 580; 56 Wis., 219; 43 Am. Rep., 716; 55 Vt., 495; 45 Am. Rep., 634. A deputy-clerk, a crier and two messengers of the Supreme Court of the District of Columbia,cannot recover the additional compensation allowed by the Joint Resolution of Congress of Feb. 28, 1867. [Nos. 161, 162, 163, 164.] Submitted Jan. 10, 1878. Decided Jan. 21, 1878. The cases are stated by the court. PPEALS from the Court of Claims. Mr. E. B. Smith, Asst. Atty-Gen., for the appellants. Messrs. A. G. Riddle and Francis Miller, for appellees. Mr. Justice Miller delivered the opinion of the court: Of the appellees in the above cases, one was a deputy-clerk of the Supreme Court of the District of Columbia, another was the crier of that court and two others were messengers. They each sued in the Court of Claims to recover the additional compensation allowed to certain employés of the Government by the Joint Resolution of Congress of February 28, 1867. 14 Stat. at L., 569. The Court of Claims finds the above facts, and while it says, in what purports to be an opinion, that it believes that the Resolution refers to clerks and employés of the executive branches of the Government alone, and does not extend to those of the judiciary, it, nevertheless, renders a judgment for the claimants. We concur with the Court of Claims in the opinion that the Resolution does not extend to the officers and employés of the Judicial Department of the Government, and though, in some instances, it may not be easy to say to which department a claimant may belong, we have no difficulty in holding that each of the present claimants belongs to that department. The deputy-clerk, Meigs, whose case is the principal one, was appointed by the clerk of the court, and the latter was appointed by the court. The deputy served at a salary fixed by contract between him and the clerk. He was also paid by the clerk and worked for the clerk, and performed services which it was the duty of the clerk to perform, and for which the clerk received compensation by fees paid by the liti gants for whom those services were rendered It is very difficult to see how this deputy-clerk can be called an employé of the Government at all. The Government was never liable to him for any salary at any time and, if the principal clerk had failed to pay him the $2,000 the Government clearly would not have been liable for it. How, then, can it be liable for the additional 20 per cent? The crier and messengers, were employés of the court; the first appointed by the court and the others by the marshal, to perform services immediately in connection with the court and its judges; and, if employés of the Government | suit in the Court of Claims. His claim rests, not at all, they certainly belong to the Judicial De partment, and not to the Executive. upon any contract with the Government, either express or implied, but upon Acts of Congress providing for a regulation of the salaries of deputy-postmasters. On the 13th day of March, 1871, he was appointed postmaster at Florence, Kansas, and his salary was fixed at $7, until it could be ascertained what the business of his office would be. He entered upon the duties of the appointment on the 14th of April, 1871, and continued therein until after July 1, 1872, from which date his salary was fixed at $560 a year. His claim now is, that, under the statutes prescribing the basis for compensation, adjustment and re-adjustment of salaries of postmasters, he is entitled to be paid for his service between April 14, 1871, and July 1, 1872, the sum of $578. Before examining the Acts of Congress bear The case of Manning, 13 Wall., 578 [80 U. 8., XX., 706], is relied on as covering the case of the present claimants. Manning was a guard in the jail of the Penitentiary of the District of Columbia. He was appointed by the warden of the jail, and his compensation fixed by the Secretary of the Interior. Whether the warden of the jail, since the office has been disconnected from the marshal's office, can be held to belong to the judicial branch of the Government, it is not necessary to decide, but a decision which would recognize all the county jails, penitentia ries and other prisons of the United States as belonging to the Judicial as distinguished from the Executive Department of Government, would, we imagine, excite surprise. It is very clear that Manning was not an employé under the court,ing upon the subject, some further notice of and that the crier and the messengers are; and, if the deputy-clerk can be said to be in the employment of any but his principal, he also performs duties under the immediate control of the court. The circumstance that in the emolument account of the clerk the auditor allows him to deduct, from the fees which he would otherwise pay into the Treasury, the deputy's compensa tion does not make him an employé of the department. All claims paid out of the Treasury of the United States must be audited by one of its officers, and approved by one of the comptrollers; but their action in allowing or refus ing to allow a claim proves nothing as to which of these great constitutional divisions, executive, legislative or judicial, the claimant belongs. The judgments of the Court of Claims are, therefore, reversed, with directions to the Court of Claims to dismiss the petitions. UNITED STATES, Appt., v. J. K. MCLEAN. (See S. C., 5 Otto, 750-753.) the facts is necessary. In the letter accompanying the claimant's appointment, he was required to make out, at the end of each quarter, and forward to the Third Assistant Postmaster-General, a statement, under oath, of the total value of postage stamps canceled during the quarter; and he was informed that his salary could not exceed the amount to which the office would be entitled, from commissions and box-rents under the former laws, but that it would be re-adjusted at the proper time by the PostmasterGeneral, on the basis of the amount of business done, as shown by the quarterly statements required. On the 1st of June, 1871, he was instructed from the department that, in order to enable the Postmaster-General to review and readjust his salary from and after the first day of July, 1872, he should keep an account of the total number of stamps canceled at his office for the six months beginning July 1, 1871, and ending December 31, 1871; also the amount collected on unpaid letters, on newspapers, and other printed matter, and for box-rents during the same period; and that, on the 1st of January, 1872, he should make out and forward a sworn statement of the amount arising from each of those sources. With this latter order he complied, and on the 1st of January, 1872, he forwarded a sworn statement, showing the revenue of his office to have been $482.67 during the six Postmaster's salary--re adjustment of executive months next preceding January 1, 1872; and, at duties. 1. After the salary of a postmaster has been fixed, a re-adjustment by the Postmaster-General must be made before it can be increased, and the re-adjustment takes effect in all cases prospectively. 2. The law imposes no obligation upon the Government to pay an increased salary, unless a adjustment has preceded it. the regular biennial adjustment of salaries, in June next following, the Postmaster General readjusted his salary on the basis of his statement, and fixed it at $560 a year, from July 1, 1872. From April 14, 1871, till July 1, 1872, the claimant re-made no application for re-adjustment of his salary as first fixed, unless a letter written by him 3. Courts cannot perform executive duties, nor to the Third Assistant Postmaster General, comtreat them as performed when they have been neg-plaining of the inadequacy of his compensation, lected. [No. 792.] Submitted Nov. 19, 1877. Decided Jan. 21, 1878. PPEAL from the Court of Claims. AP The case is stated by the court. Mr. S. F. Phillips, Šolicitor-Gen., for appellant. Mr. Harvey Spalding, for appellee. Mr. Justice Strong delivered the opinion of the court: The case of the claimant appears to be an hard one; but we think he has no remedy by can be regarded as an application for re adjustment. But that letter was unaccompanied by any sworn statement of the income of his office, and it furnished no basis for re-adjustment; nor was there any subsequent application, except that, in October, 1872, after the salary had been fixed at $560 from July 1 of that year, a person claiming to be the claimant's attorney wrote to the department, requesting that the order readjusting the salary should be modified, so as to take effect from April 14, 1871. But this application also was accompanied by no sworn statement of revenue. |